The oath of office as prescribed in the Constitution of Curaçao requires Members of Parliament and Government to: “..pledge to maintain the Constitution of Curaçao”. Yet, the same Constitution does not have any legal means to guarantee the supremacy of the Constitution and constitutional legality of (proposed) legal acts in the country. In other words, the very people who should safeguard our constitution can breach it by accepting or enacting a legal act without an independent institution being able to determine its constitutionality. This does not make any sense. It makes a mockery of the oath of office and the Constitution. Further, it is arbitrary, antidemocratic and it compromises the very stability of the Constitution itself. As we have seen the new drama unfold in the Parliament of Curaçao, it has become painfully clear that we cannot and should not continue on this path. In this article I make the case for a Constitutional Court and judicial review, meaning the review of Constitutional validity of a legal act.

The plight for judicial review is not new. Curaçao‘s Statesman, dr. Moises Frumencio da Costa Gomez made his case in 1946 (Curaçao in het Koninkrijk, p.123) for Curaçao to depart from the Dutch Constitution (which still prohibits judicial review) by making it possible for Curaçao to review laws and legislation, making sure they abide by the Constitution. He did not go as far as calling for a Constitutional Court, but felt that this review could be handled by the ‘normal’ Appellate Court. I have been calling for a Constitutional Court since 2010. During my tenure as Member of Parliament (2012-2016), I worked arduously on this matter and even made my case with the President of the Joint Court of Justice of Aruba, Curacao, Sint Maarten, Bonaire, Sint Eustatius and Saba who was very enthusiastic as long as it became part of the Joint Court of Justice. Finally, a draft legislationwas presented to the Parliaments of Aruba, Curaçao and Sint Maarten to make the necessary constitutional changes in order to make a Constitutional Court a reality.

A Constitutional Court, but how and what? This is my take on things. This is by no means an exhaustive list.

Together or solo?

The case for a joint Constitutional Court is overwhelming considering our small scale, lack of financial resources and qualified personnel. On top of that, I agree with (the now former) President of the Joint Court, that the Constitutional Court should be part of the already established and highly respected Joint Court of Justice. There are, according to my knowledge, no legal impedimentsforgoing solo, but I do not see any real advantages in doing so.

Scope

The way we have dealt in Curaçao with constitutional crises and multi-interpretations of the Constitution so far is based on the arguments of politicians – usually lacking even a rudimentary knowledge of constitutional matters – popular talk shows, and ‘expert opinions’ by various people with their own political agenda. Evidentlythis does not constitute the basis for constitutional review. On the contrary, it threatens the integrity of the Constitution and causes unnecessary drama. The main raison d’etre of the Constitutional Court should be to decide on only constitutional matters and issues connected with constitutional matters. In principle the Constitutional Court should be limited to rule whether a certain legal act is in conflict or not with the Constitution. Notwithstanding the foregoing, I also want to make the case for the Constitutional Court, under certain very limited circumstances, to clarify, interpret or reinterpret certain official constitutional provisions when there is a real necessity to improve the protection of the constitutional values and control mechanisms enshrined in the Constitution.

Decisions are binding.

A legal act that has been ruled by the Constitutional Court to be unconstitutional may not be applied from the day the ruling becomes publicly known and should be permanently revoked and or removed from the our legal system. An unconstitutional legal act cannot be replaced by a different but equivalent act. I do not believe in retroactive effect of decisions made by the Constitutional Court, even if such possibilities exist in some countries. The final decisions and or interpretations of the Constitutional Court are binding on all courts, institutions, organizations, officials as well as on citizens.

Repeal or amend.

When implementing the rulings of the Constitutional Court by which certain legal acts have been ruled to be in conflict with the Constitution, these acts should be either repealed or adapted, establishing a new regulation that is in accordance with the Constitution.In both cases it is necessary for the Government and the Parliament to be given enough space to make the above–mentioned changes.

Establish constitutional jurisprudence.

The Constitutional Court should be bound by its own precedents and decisions in order to be consistent and ensure the continuity of constitutional jurisprudence. The importance lies in the fact that at all cost arbitrariness and subjectivity depending on the composition of Government, Parliament and even of the Constitutional Court itself could taint the constitutional doctrine.

Finally, the Constitution embodies a system of core values that guarantee the protection of the rights and freedoms of each and every person. We should therefore make sure that the Constitution is upheld as an integral and harmonious system. It is way too easy in our system of parliamentary democracy for Members of Parliament to think that somehow they are almighty and do not – notwithstanding the oath of office – have to bother with the Constitution. In any case, easily they can find or pay someone to interpret the Constitution as they want it to be. I guess that is why I am for a constitutional democracy. But for now, let us make sure that we get a Constitutional Court without further ado. A first version has been drafted and should be picked up by the new Members of Parliament as soon as possible.

There are times when one single story makes us understand how much of this world is evil. This is an account about how a whole population was forced to go live 1,600 km away, while their island was turnedinto a secret military base. This is the story about how these people’s dogs were killed and were threatened with the same fate if they did not abandon their island. At this point you may be thinking that this article is about some ghastly dictator like Pol Pot or Idi Amin. Think again. This heinous crime was committed by Britain and the U.S.. Neither did it happen in the dark days of colonialism, but in 1971. The victims are the people of the island Diego Garcia. If you haven’t heard of them, it is not surprising. Diego Garcia is on nobody’s agenda.

Diego Garcia is, just like Curaçao, one of the 25 Overseas Countries and Territories (OCT). It belongs to the United Kingdom and is just a little bit smaller in size than Sint Maarten. Diego Garcia, once a paradise–like coral island, lies in the Indian Ocean midway between Africa and Asia. In the 60s many secret encounters took place between Britain and the U.S. and apparently hidden from Congress and Parliament, a deal was struck to make Diego Garcia a top-secret U.S. military base. All of the 2,000 inhabitants of Diego Garcia, the Chagossians, had to be deported as part of this deal. In response to the unwillingness of the inhabitants to leave voluntarily, the Chagossians were deprived of basic supplies and terrified into leaving. According to the Australian journalist, John Pilger, during the first half of 1971 all of the pet dogs on the island, about one thousand of them, were rounded up and gassed to death using exhaust fumes from U.S. military vehicles. The Chagossians threatened with the same faith, were shortly afterward forced to leave their homeland. They were put on the general cargo ship Nordvaer, given one mattress per family (no matter the number of family members) and allowed to take only one suite case per person. When they arrived in the Seychelles they were put in prison before taking off to their final destination, Mauritius, an island that lies 1,000 miles to the west of Diego Garcia.In files discovered by Mr. Pilgers, the Chagossians were described by a top Government Official in London as, “people with little aptitude for anything other than growing coconuts.” Is it me or does this sound all too familiar to some very dark periods we have known in our human history? Eerily so, it does. When these people arrived in Mauritius not surprisingly cases of suicide, abysmal poverty and prostitution abounded. In 1981 each evicted islander got U.S. $ 4,000 from the British Government.

Today, Diego Garcia is seen in the eyes of the Pentagon as an ‘indispensable platform for policing the world’. It was pivotal in the wars in Afghanistan and Iraq and continues to be. On Diego Garcia there are about 2,000 American Troops, 30 ships, including nuclear-armed aircraft carriers ready to jump into action against whatever Washington D.C. might categorize as ‘evil in the world‘. The houses of the Chagossians, for a great part now overtaken by the jungle, still can be seen with lots of furniture and personal belongings of those forced into exile.

In the year 2000 the British High Court ruled that the Chagossians were wrongly evicted. But four years later the government used the royal prerogative in the Queen’s name and nullified the decision. These totally reprehensible actions have not been reversed and Diego Garcia continues to be a secret U.S. military base, whilst the Chagossians are being denied to get their island back.

In my 10 years as Minister and Member of Parliament, I have raised the issue of Diego Garcia with every U.S. or British ambassador I met including the current Prime Minister of the Netherlands. As if perfectly rehearsed, all of them told me that they knew nothing about the case, some of them even frowning incredulously as if they had never before heard about the existenceof Diego Garcia. But all of them told me that they “would inform me as soon as they heard something”. I guess they have yet to hear something.

I was full of hope this year since the current lease of Diego Garcia to the U.S. was to come to an end. I was hopeful that the meeting announced in early 2016 between Prime Minister David Cameron and President Barack Obama would result in letting the Chagossians return to their homeland. No such luck however. Last month, November 2016, it was announced in London that the U.S., in a deal with Great Britain, will be allowed to continue to use Diego Garcia as a secret military base until the end of 2036. No protests anywhere. No ‘Je suis Diego Garcia campaign‘ on social media. No mention of these people in the Pope’s Christmas sermon. The Chargossians yearn to see their country again, but they can’t. They want to go back to their homes, beaches and loved ones who are buried there. Unfortunately for these inhabitants, their home, the island of Diego Garcia is on no one’s agenda. Wait, I have to correct myself. Diego Garcia was mentioned two years ago in connection with the conspiracy theory that somehow lost Malaysian Airlines Flight 370 may have landed there.

Without any other decision, thousands of Chagossians will remain expelled from their land for at least another generation. Meanwhile, this tiny island will continue to provide the world with a secret military base, called Camp Justice, in the war against the bad guys in the world – while at the same time sheltering a long history of flagrant human rights committed by Britain and the U.S..

French President, Jacques Chirac, told a delegation of U.S. Senators in Paris on January 31, 2005 that the era of the U.S.A. as the sole world power was over and implied that France will (again) be a power center. This did not sit well with the U.S. delegation. Senator Joe Biden according to the New York Times of February 8, 2005 defiantly stated that: “Chirac still doesn’t like the idea of an unipolar world with the U.S. as top dog”. Neither Chirac nor Biden got it right. Not only is the U.S. world hegemony disappearing, but the shift is away from the West making place for China, Russia and India among others. Noteworthy is also the shift away from the central (or federal) government’s monopoly on foreign relations to cities and subnational governments adding their voices to the main international stage. Foreign relations are being rewritten in the 21st century.

The whole idea that the incoming U.S. President will take on foreign policy as a big business deal with only him calling the shots, is a dangerous misjudgment and unquestionably will not lead to winning any crowns in the ‘top dog competition’. If Mr. Trump wants the U.S. to once again play a predominant role in the world, he must realize that his country cannot control a multipolar world through unilateral actions. Threatening to build tariff walls, break from the Paris Climate Agreement, the World Trade Organization (WTO) and the North Atlantic Treaty Organization (NATO) will not make ‘America great again’ but will hasten the passing of the superpower relay baton to other nations eager to fill the vacuum left behind. Also, spending less money on aid and international organizations like NATO and the United Nations may resonate well with his diehard voters but will not with the rest of the world. Let’s be honest, to lead is costly. To not want to spend money in this context means you are not interested in leading. And finally, pulling back from the world will certainly not make the U.S. safer or more prosper. The more aggressive and unilateral Mr. Trump behaves towards its natural partners, the more he will drive them, as well as non-Western countries eager to be the next power centers, into alliance with one another and opposition to the U.S.. Reality check for the next Administration is that today’s world is light-years away from the Ronald Reagan’s world of collapsing Soviet Union’s power and influence.

Nowhere is it more apparent that changes have arrived than the voices of state or province capitals and City Halls being added to the international stage. Mexico has just taken the step to change its capital, México Distrito Federal (a federal district similar to Washington District of Columbia) to Cuidad de México, a city with more autonomy. This constitutional change will be formalized next year, 2017. Interestingly enough is that according to Article 25 of the new Constitución de la Cuidad de México, Mexico City will soon draft its own international strategy to promote its presence in the world. Alberta, a Canadian province, maintains offices in Chicago, London, Seoul, Berlin, Taipei and many more. The Alberta International and Intergovernment Relations is responsible for maintaining relations with foreign countries and the Canadian federal government. On September 11, 2016 over 60 mayors representing cities from all over the world founded the Global Parliament of Mayors after a two-day conference in The Hague, The Netherlands. This initiative was inspired by the groundbreaking book If Mayors Ruled the World: Dysfunctional Nations, Rising Cities by Dr. Benjamin Barber. More and more cities and subnational governments are becoming members of international organizations. Macau and Hong Kong as non-sovereign entities are members of the WTO. According to an article presented at the 2016 World Economic Forum, there are about 125 multilateral arrangements of subnational governments. These arrangements are expected to grow exponentially in the coming years.

These exciting changes in foreign affairs should be music to our ears because they offer my native Curaçao many new opportunities. Curaçao is a non-sovereign part of the Kingdom of the Netherlands and is responsible for its own internal affairs. Looked through the lens of classical interpretation of the Charter for the Kingdom of the Netherlands (1954), Curaçao has no say in international affairs. Sure, 62 years ago the world was a whole lot different. We are now in the second decade of the 21st Century. Curaçao should assertively find its place, pursue its goals in an interdependent world. I am not proposing to start any war with The Hague. Not necessary. As a matter of fact let The Hague continue its policy notwithstanding the fact that it basically only looks after the interests of the Netherlands and not of Curaçao as it should given that international relations are a Kingdom affair. Despite my many conversations with Dutch Members of Parliament and Ministers from 2005-2016, nothing has changed. Old habits die hard. What we should do is take care of the things for which we are responsible. Nothing impedes us to pursue our goals regarding economic affairs, trade, tourism, health, education and the environment to name a few, on the international stage. Let’s not call it diplomacy in the traditional sense if that is going to upset some folks. Let’s call it paradiplomacy, but really it is about getting things done which, let’s be honest, is not happening. The Hague will not change this. We have to change things. Repeating a few ideas on this matter I put forward in 2013 for the Parliamentary discussions in the Kingdom of the Netherlands, I think now is the time for us to start preparing people and using our diaspora to build and profit from international networks and knowledge. Curaçao should also have representations in foreign countries and cities. We need people on the ground to be our ears, eyes and especially people who are committed and conscious of their mission to serve Curaçao’s interests. Very important for Curaçao is to formalize the political decision that has been taken in 1998 for an independent WTO membership. This membership will allow Curaçao to better make itself familiar with international trade and WTO technical assistance regarding the complicated multilateral trade framework. We should also look into more meaningful relationships as a non-sovereign territory with multilateral organizations. These tasks are enormous and fraught with many uphill battles. Reason why it should be taken in steps. I would suggest to start with a clear and effective diaspora policy. Our diaspora already exists, but should be organized, more involved and committed towards our common goals. Second, we should have a number of paradiplomats in strategic cities/countries around the world. Also, we should not underestimate the importance of twin-cities and sister-cities agreements with cities all over the world, especially those that could serve our interests. Just to be clear, I am not, in this article, flirting with any kind of Constitutional change for Curaçao or the Kingdom of the Netherlands. The goal is to accentuate that foreign relations have changed in ways our forefathers have never anticipated in 1954. We must be bold in order to rack up the gains from the new opportunities out there. But most importantly, we must act. Curaçao has to find its new place in an interdependent world which goes beyond The Hague. It should not only be about economic growth either. We should aim to be a responsible global actor. Curaçao is way too small? Yes, geographically. But, we can bat out of our league. History has proven that already.

The Muslim Rohingya people of Myanmar, formerly known as Burma, have had their share of discrimination and persecution at the hand of radical Buddhists and the government of Myanmar. Their plight however, has remained under the global radar for many decades. Not anymore. The brutal Myanmar's military junta that allowed these abuses to take place with impunity, has been replaced by a civil government. The de facto Myanmar's leader, the 1991 Nobel Peace Prize winner, Aung San Suu Kyi, still widely seen as a moral compass, is under international pressure to guarantee the Rohingya's rights. So far failure to do so has attracted terrorist groups like ISIS and Buddhist extremists like Ashin Wirathu – referred to as the Burmese bin Laden – to further their agendas. Clearly Myanmar cannot downplay this crisis anymore. Aung San Suu Kyi must act now or be forced to act.According to United Nations' estimates, there are 1 million Rohingya in Myanmar and they form 40% of the population in the Rakhine state which is situated in the Western part of the country. Other countries with a significant Rohingya population are Saudi Arabia (400,000), Bangladesh (300,000) and Pakistan (200,000). The Rohingya people are generally Sunni Muslims whilst Myanmar(est. population 54 million) has an overwhelming Buddhist majority. They have been subjected according to Amnesty International and the United Nations (UN) to 'systematic deprivation of their basic human rights' leading to many revolts and killings in the past. The Myanmar's Rohingya have by law been denied citizenship, rendering the majority stateless even though it has been widely acknowledged that they have been living in this area for hundreds of years. Contrary to the UN Conventions on Statelessness, they do not enjoy the basic human rights regarding education, employment, housing and free movement. This has made the Rohingya among the most vulnerable, poor and disenfranchised group within the Myanmar society. The current escalation of violence that started in October 2016 in Rakhine has claimed the lives of at least a hundred people according to credible reports. The army has been blamed for using deadly force, raping of Rohingya women and setting civilian houses on fire as a response to attacks by a small group of crudely armed Rohingya carrying guns, knives and spears. Providing little proof, the army has blamed foreign Islamist terrorist groups as those responsible for the series of recent attacks in Rakhine. It even claims that the Rohingya have set their own villages on fire in order to worsen the crisis. Scores of Rohingya have so far fled to Bangladesh. But, Bangladesh does not want more refugees and has called on Suu Kyi's administration to assume its responsibility. Aung San Suu Kyi however, has remained largely mute especially regarding allegations of human rights violations and rape. Also baffling to many leaders in Europe and the US where she is still seen as a pro democracy icon, is her administration's censorship of reporting on the situation of the Rohingya. Suu Kyi, herself a victim of censorship by the former military junta, has yet to deliver on her promises as a human rights advocate. On the streets of many Asian cities protesters want her Nobel Peace Prize revoked. The world is growing weary of her “we will take care of it” answer. In Mrs. Suu Kyi's defense, it is not clear how much power her civilian government has over the army that was used as a political tool by the military junta for decades. Old habits die hard. Mrs. Suu Kyi must however realize that she cannot keep sweeping this problem under the proverbial rug. First and foremost, the Myanmar government must recognize it has miserably failed the Rohingya. It must rapidly take steps to address the stigma and marginalization of these people. Path to citizenship for the Rohingya as the Obama Administration and other foreign officials have been advocating, should not be a top priority. Figures show that the Rohingya who do have the Burmese nationality do not fare any better than those without nationality. These people should get civil rights, access to government services and especially the rights of all children to enroll in school must be reestablished. International donors must work together with government to ensure that these basic needs are met. It is not only the right thing to do, but it has to be evident that terrorists organizations feast on young disenfranchised men. It may be an attractive option because the terrorists are able to offer the recruits money, a sense of belonging and a life purpose. The Indonesian terrorist group linked to ISIS and known for the Bali bombings, Jamaah Ansharut Tauhid and the al-Shabaab in Somalia have asked Myanmar Muslims to 'be saved by the savage Buddhists'. While the ISIS and its affiliates could be using the Rohingya's plight to advance their own radical agendas, there is real concern all over the region that these alienated Rohingya can be easily radicalized and militarized which would give the current crisis a whole new dimension. Protests last month in Jakarta (Indonesia) are calling for Indonesia to break off diplomatic ties with Myanmar. In Kuala Lumpur (Malaysia) the Malaysian president not only was present a large rally of the opposition against Suu Kyi's government, but called on Southeast Asia and the world to step up the pressure to put an end to 'genocide of the Rohingya'. It is expected that this time the Association of Southeast Asian Nations (Asean: Brunei, Cambodia, Indonesia, Laos, Malaysia, Myanmar, Philippines, Singapore, Thailand and Vietnam) will not shamefully stay silent over the Rohingya crisis as it did over the human rights abuses by Thailand's military junta. Not acting this time will look bad for all Asean members and will certainly compromise its capacity of handling serious security challenges like the dispute in the South China Sea. Another challenge for the Su Kyi's government is the nationalistic, anti-Muslim Buddhist group(s) antagonizing the Rohingya and inciting violence against them – not unlike what happened before the genocide of Tutsis and moderate Hutus in Rwanda two decades ago. The charismatic leader of the 969 Movement, Mr. Ashin 'the Burmese bin Laden' Wirathu who vows to 'protect Myanmar and Buddhists the world over from Muslims' probably feels emboldened by the same rhetoric used by many of Myanmar's government officials and Suu Kyi's silence so far. Not long ago Mr. Ashin struck a pact with the Sri Lankan anti-Muslim organization, Bodu Bala Sena, to 'prevent the end of Buddhism in the world'. Meantime, the government and army continue to block all access of aid organizations and the free press to report from the affected areas. Left to its own devices, we may soon see a genocide unfolding in Myanmar. The Rwandan genocide has taught us that mass slaughters are not prevented by not taking sides; by not upsetting the sitting government and by having endless diplomatic meetings in the victims hour of need. The time has come for the international community to assume its responsibility. It may be very well the only real hope for the Rohingya.
Alex Rosaria is from Curaçao and writes about world events. He was Member of Parliament, Minister of Economic Affairs. Before that he worked for the UNDP in Africa and Central America.

There are many diverse forces at play in the world that directly impact the quality of our lives, our pocketbooks, personal freedoms and the environment. This blog is my feeble attempt to make sense of world events as they unfold before our eyes. Feel free to discuss and comment.

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Alex David Rosaria (50) is from Curaçao and has a MBA from the University of Iowa. He is a former Member of Parliament, Minister of Economic Affairs, State Secretary of Finance and UN Implementation Officer in Africa and Central America.